Johnson execution follows discord among Supremes

Last week’s execution of convicted killer Cecil Johnson — who murdered three people, including a 12-year-old boy, during a 1980 robbery at Bob Bell’s Market (now 12South Taproom) — was preceded by a spirited legal dispute between U.S. Supreme Court Justices John Paul Stevens and Clarence Thomas.

Despite the detailed case references — with its attendant italics, page numbers and general formality — Thomas’ written response, in particular, to Stevens’ High Court statement supporting a last-minute stay of execution for Johnson read like a high-stakes legal bitch slap.

Johnson, who was 23 at the time of his crime and 53 at the time of his death last week, had been challenging his guilt for 29 years using the same sorts of constitutional proceedings most death row inmates use to delay their deaths or, in rare cases, to exonerate themselves.

Though there’s really no doubt about Johnson’s guilt, Stevens argued that Johnson’s Eighth Amendment claims about “cruel and unusual punishment” outlined in the stay
request had merit, given the lengthy duration of his time on death row.

“Johnson bears little, if any, responsibility for this delay,” Stevens wrote the night of Johnson’s lethal injection, arguing as part of a minority (along with Justice Stephen Breyer) for the stay. “The delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.” And the justice stressed his “strongly held view that state-caused delay in state-sponsored killings can be unacceptably cruel.”

He also noted that justices don’t have to accept, as he believes and has formerly written, that capital punishment represents “the pointless and needless extinction of life with only marginal contributions to any discernable social or public purposes” to find that long delayed imposition of the death penalty is “without constitutional justification.”

That was the essence of Stevens’ piece, at which point Thomas went on a scorching legal tear representing the majority opinion.

“In 1981, the petitioner in this case was convicted and sentenced to death for three brutal murders he committed in the course of a robbery,” Thomas wrote. “He spent the next 29 years challenging his conviction and sentence in state and federal judicial proceedings and in a petition for executive clemency. … He now contends that the very proceedings he used to contest his sentence should prohibit the State from carrying it out, because executing him after the ‘lengthy and inhumane delay’ occasioned by his appeals would violate the Eighth Amendment’s prohibition on ‘cruel and unusual punishment.’ ”

But that was just the prelude to the prosaic pyrotechnics.

“It has been 14 years since Justice Stevens proposed this ‘novel’ Eighth Amendment argument. I was unaware of any constitutional support for the argument then. And I am unaware of any support for it now. There is simply no authority … for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”

Cue now the acerbic sarcasm.

“In Justice Stevens’ view, it seems the State can never get the timing just right. The reason, he has said, is that the death penalty is wrong. But this is where he deviates from the Constitution and where proponents of his view are forced to find their support in precedent from the ‘European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.’

“At bottom, Justice Stevens’ arguments boil down to policy disagreements with the Constitution and the Tennessee legislature. … As long as our system affords capital defendants the procedural safeguards this Court has long endorsed, defendants who avail themselves of these procedures will face the delays Justice Stevens laments.”

In a biting conclusion, Thomas suggests that there’s a remedy for what Stevens argues: Apply the principle that punishments — executions — should swiftly follow conviction. “I have no doubt that such a system would avoid the diminishing justification problem Justice Stevens identifies, but I am equally confident that such a system would find little support from this Court.”

In the end, Johnson’s execution proceeded on schedule. But the seemingly irreconcilable divide in the justices’ concept of cruel and unusual punishment — and the rancor underlying it — will survive for years to come.

5 Comments on this post:

By:sidneyames on 12/7/09 at 7:45

In her article about the discord among Supremes regarding the death penalty, Liz Garrigan "But the seemingly irreconcilable divide in the justices’ concept of cruel and unusual punishment — and the rancor underlying it — will survive for years to come."

But no where in the article does she address the concept of cruel and unusual punishment bestowed on the father of a 12 year old son who's life was brutally taken by Johnson.

All too often we pity the offender. How sad. As a culture, we seem to forget the victim when we are discussing the death penalty. I'm for swift action when it comes to the death penalty. That would possibly alleviate some of the outrageous murders that occur. If a perp knew there would be death within 6 months, and no 29 years of life, albeit rather lonely, it is still 29 years of life, then maybe they'd think twice before committing such heinous crimes. Just my opinion!

By:EddieA on 12/7/09 at 9:15

Similar arguement that the death penalty does not work. It does! The death penalty keeps the majority of people, people like you and me, from killing other people. The true answer to our crime problem may lay in the newly released book 'The Harvesting of Joseph Victorio". There is a lengthy chapter on the Lemon Theory.

The Lemon Theory is based on the automobile studies in the late 1960s and 1970s. The theory is simple, out of millions of automobiles produced in Detroit, some were lemons. They were made with similar parts, made by the same people, and produced on the same assembly line. For some reason, some did not work correctly - they could not be repaired and they were called lemons. Legislation was passed so Lemons could be returned.

The lemon theory is the same in humans. Out of millions of people born, some do not work correctly. The human lemon has no concious. They feel no guilt or remorse for anything they have done.

In the novel, the American government tested and selected Lemons to do the job of harvesting. The harvesters control the excess population by harvesting citizens who attain the legal age of sixty-five years. Like the concept of harvesting in hunting, the harvesters come into the people's home and harvest them for usable body parts and destroy what is left.

Unlike the defenseless animals who are harvested for population control, the humans are not defenseless - they have guns and the harvesters only have stunners. The harvesters become the harvested.

Good book if you like action.

By:idgaf on 12/8/09 at 10:59

Kill the kid spare the murderer,

The Liberal Creed.

By:d4deli on 12/8/09 at 11:58

Johnson was convicted without a single bit of physical evidence to prove he committed this crime. There were two eye witnesses, and eye witnesses prove to be unreliable. I think it is significant that there was no tangible evidence. Johnson may or may not have been guilty of the crime. We certainly have put innocent people in prison before. We have also murdered a few, calling it execution.

I also find it interesting that as a tax payer, it is cheaper to incarcerate someone for life, rather than sentence them to death. It is the appeals process that costs so much money. There is something wrong with our system. And I thank God that I do not stand in judgement. I don't feel that someone must pay for this crime --- that vengeance does not belong to me.

By:TharonChandler on 12/8/09 at 1:15

re:{ "Though there’s really no doubt about Johnson’s guilt, Stevens argued that Johnson’s Eighth Amendment claims about “cruel and unusual punishment” outlined in the stay request had merit, given the lengthy duration of his time on death row".}

So, reckon how was the food and the 'air quality' there on death-row, in TN?

What I remember about my time as an employee (at Deberry SNF), in getting my share of the 'cook-chill' menu fare (scheme hatched by Sundquist, catered by the Mariott, and served up by inmates) is that it was always possibly poisoned by inmates; of which they would sometimes cause you to imagine that it was by their speech and actions around it. Also, The 'air quality' in the 'classroom' where I worked or taught or assisted was Horrendous (seemingly something putrid was vapor locked and comming out of the cafeteria dishwash into the air vents).

For an inmate serving time for an alleged criminal conviction the ideal is not supposed or intended to facilitate any 'cruel and unusual punishment' by officers and staff and cooks upon the perpetrator but justly to 'incarcerate them away from the public', for the sake of the safety of the public. His 'sentence' is already completed by judges and then his 'custody' is carried out by employees of the state. To even be forced to live in there would be beyond anything i could suffer (simply because of the Evil that the men and women in charge there would project upon me); bad air and bad food is worse than death (not to mention evil doctors workin there). It would be better for the inmate to suffer a timely 'execution' except for the fact that the inmate might have valid information about the Crime (and could possibly even be innocent).

Murder is forbidden within 'The ten Commandments' and that includes murder by Government. Torture of citizens is forbidden by the eighth amndt of the US Constitution. Even 'food shortaging' and housing shortaging is happenning to some native 'citizens', all the time.